STATE OF NEW JERSEY v. BERNARD TURNER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3712-12T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BERNARD TURNER,

Defendant-Appellant.

_______________________________________

December 24, 2014

Submitted November 12, 2014 Decided

Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-06-1949.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Bernard Turner appeals from an order entered on November 2, 2012, denying his petition for post-conviction relief ("PCR"). We affirm.

I.

Defendant was charged under Camden County Indictment No. 08-06-1949 with first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2 (count four); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(3) (count five).

On December 12, 2008, defendant pled guilty to count one, which was amended to charge first-degree aggravated manslaughter. On February 13, 2009, the court sentenced defendant to eighteen years of incarceration, with an 85% period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant did not take a direct appeal.

On September 22, 2011, defendant filed a pro se PCR petition, and the court appointed counsel for defendant. Defendant claimed that he had been denied the effective assistance of counsel because his attorney: failed to have him evaluated by an expert to determine if he was mentally competent and/or suffered from diminished capacity; did not properly investigate the merits of the State's case; failed to move to suppress the statement he gave to the police; and failed to request a Wade hearing challenging the admissibility of evidence identifying defendant as the perpetrator.1 Defendant argued that the court should conduct an evidentiary hearing on these issues. In addition, defendant claimed that his sentence is excessive.

Counsel appeared for argument on November 2, 2012 and indicated that they would rely on their written submissions to the court. The PCR judge filed a written opinion on that date. The judge concluded that defendant had not presented a prima facie case of ineffective assistance of counsel, and determined that an evidentiary hearing was not required. The judge also rejected defendant's claim that his sentence is excessive, noting that such a claim is not appropriate for PCR. The judge entered an order denying PCR.

On appeal, defendant raises the following arguments for our consideration

POINT I

DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING HE BE GRANTED AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF

POINT II

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF

(a) Failure to Retain a Psychiatrist; Mental Capacity

(b) Counsel was ineffective for failing to make any meaningful challenge to the Miranda hearing

(c) Counsel was ineffective for failing to make any meaningful challenge to the witness identification prior to advising Defendant to plead guilty

II.

In order to prevail on a claim of ineffective assistance of counsel, as guaranteed by the Sixth Amendment to the United States Constitution, a defendant must satisfy the test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In State v. Fritz, 105 N.J. 42, 58 (1987), our Supreme Court adopted this test for consideration of claims of ineffective assistance of counsel raised under the New Jersey Constitution.

A defendant first must establish that his attorney's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To do so, the defendant must show that his attorney's handling of the case "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, a defendant must establish that his attorney's deficient performance prejudiced his defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To meet this part of the test, "[a] defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

A. Failure to retain psychiatrist.

Defendant argues that his attorney was ineffective because counsel failed to retain a psychiatrist to consider his ability to enter a plea knowingly or voluntarily. Defendant contends that, at the time of the plea and sentence, he did not have the mental capacity to make an informed decision. He claims that counsel was aware of his limitations and should have retained an expert in psychiatry to "put forth" a claim of diminished capacity to make an informed decision or understand the consequence of his actions.

The PCR judge noted in his written decision that, although defendant had received an initial diagnostic impression of "borderline mental retardation" when he was eight years, eleven months old, he was assessed thereafter, in accord with N.J.A.C. 6A:14-3.8, to determine whether he remained a student "with a disability." The judge pointed out that a learning assessment from September 2003, when defendant was eighteen, seemed to call into question the validity of the earlier assessment. Among other things, the 2003 assessment noted that defendant has been functioning at the "upper end" of the low average range of "intellectual development."

An evaluation conducted a short time later indicated that defendant had been a "very consistent student." The examiner who prepared the evaluation noted, among other things, that defendant could comprehend instructions and tasks, and did not misinterpret or misunderstand test materials or questions. His language proficiency and adaptive behavior were said to be "age appropriate."

The PCR judge noted that defendant had not presented the court with a report of a psychologist or health care provider who could support a diminished capacity defense. The judge stated that the two recent assessments of defendant's mental capacity emphasized defendant's ability to comprehend. Moreover, the PCR judge was the judge who handled defendant's plea hearing. The judge noted that, at the plea hearing, he had found, based on his colloquy with defendant, that defendant understood the proceedings and entered his plea freely and voluntarily.

We are convinced that the record supports the PCR judge's finding that defendant was not denied the effective assistance of counsel because counsel did not retain a psychiatric expert to evaluate defendant's mental capacity to enter into the plea. As the judge noted in his written opinion, defendant failed to present any expert report showing that defendant did not have the mental capacity to enter the plea. Defendant's statements at the plea hearing indicated he understood the proceedings. Furthermore, defendant's most recent psychological reports indicated that he was capable of making an informed decision regarding the plea.

B. Failure to seek suppression of defendant's statement.

Defendant contends that his attorney erred by failing to file a motion to suppress the statement he provided to the law enforcement officers. He contends that his attorney was deficient because he failed to investigate "by way of [a] current psychological assessment" whether defendant had the mental capacity to waive his Miranda rights2 and provide a statement to the detectives. We do not agree.

Here, the PCR judge found that, even if counsel erred by failing to file a suppression motion, defendant had not met his burden of showing that the motion would have been meritorious. The judge said the record shows that defendant knowingly, intelligently and voluntarily waived his Miranda rights. The judge reviewed the detective's colloquy with defendant concerning his rights, as well as the interview that followed.

The judge pointed out that the interview was "relatively short." Defendant had spoken "freely and candidly with the officers, and never asked for an attorney or for the questioning to cease." The judge stated that defendant had notified the authorities of his whereabouts, and "[e]very detail of the interview indicates the defendant's desire to waive his rights and speak with the police[.]"

The judge found that there was no basis upon which to challenge the statement due to defendant's "limited intelligence," noting that a defendant's limited intelligence does not preclude a waiver of Miranda rights. See State v. Carpenter, 268 N.J. Super. 378, 384-85 (App. Div. 1993) (holding that a defendant with an I.Q. of 71 and mental comprehension of ten-year old could validly waive privilege against self-incrimination).

The judge took note of his colloquy with defendant at the plea hearing. The judge stated that "defendant was very articulate and affirmatively indicated his understanding when asked[.]" The judge found that, because the record showed that defendant's Miranda waiver was voluntary, knowing and intelligent, a motion to suppress would not have been meritorious. We agree.

We conclude that the record supports the judge's findings, and the conclusion that counsel's failure to file a suppression motion did not amount to ineffective assistance of counsel.

C. Failure to contest identification.

Defendant further argues that his attorney was deficient because counsel failed to make a "meaningful challenge" to a witness's identification of him as the perpetrator before advising him to plead guilty.

The shooting at issue here took place on October 31, 2007. On that date, officers from the Camden City Police Department responded to a report of a shooting in the area of North 25th and High Streets in Camden. The victim, Anthony Catoe ("Catoe"), was taken to a hospital, where he died as a result of the injuries sustained in the shooting. Several witnesses identified defendant as the person they saw shoot Catoe twice in the chest. One of the witnesses was B.G., Catoe's aunt.

B.G. identified defendant as the perpetrator after viewing eight black and white photographs in an array. She then informed the investigating detectives that, on the date in question, she had been sitting in her car near the corner of 25th and High Streets, and she had been speaking with Catoe. According to B.G., defendant approached and got into a verbal altercation with Catoe. During the argument, defendant fired two shots, which struck Catoe. B.G. said she had been able to get a good look at defendant during the shooting. She provided aid to Catoe and transported him in her car to the hospital.

Defendant argues that his attorney erred by failing to contest B.G.'s identification. He says that he was prejudiced by having to make the choice of pleading guilty or going to trial based on the evidentiary admission of B.G.'s identification. He contends that the reliability of B.G.'s identification should have been explored in a Wade hearing.

However, the PCR court correctly determined that, even if counsel had requested a Wade hearing, defendant would not have been successful in challenging B.G.'s identification, under the principles set forth in State v. Madison, 109 N.J. 223 (1988), which was the law in effect at the time. The judge noted that the Supreme Court's recent decision concerning eyewitness identifications did not apply retroactively to the identification involved in this case. See State v. Henderson, 208 N.J. 208, 302 (2011).

Under Madison, the court must first determine whether the police employed an identification process that was impermissibly suggestive. Madison, supra, 109 N.J. at 232 (citing Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977)). If so, the court must determine whether the "objectionable procedure resulted in a 'very substantial likelihood of irreparable misidentification.'" Ibid. (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). The reliability determination must be made based on the totality of circumstances. Id. at 233 (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972)).

The PCR judge found that defendant failed to establish that the police had employed an impermissibly suggestive procedure when B.G. identified defendant in the photo array. The judge pointed out that there were eight photos in the array, rather than the five recommended in the Attorney General Guidelines (the "Guidelines") that were in effect at the time. In addition, the investigating officer did not conduct the lineup. The array was assembled and presented to B.G. by another officer, in accordance with the Guidelines.

Moreover, as the judge pointed out in his opinion, B.G. had reported that she had the opportunity to get a good look at the perpetrator. She reviewed seven photos and shook her head indicating that they were not the photos of the perpetrator. When she saw the last photo, which was defendant's photo, B.G. said, "That's him."

We conclude that the PCR court correctly determined that defendant was not denied the effective assistance of counsel because his attorney did not contest B.G.'s identification. Even if counsel had challenged the identification, the challenge would not have succeeded. There was no evidence of an impermissibly suggestive identification procedure, and no basis upon which to claim that B.G.'s identification was unreliable.

Defendant additionally argues that the PCR court erred by failing to conduct an evidentiary hearing on his petition. A hearing is required

only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief. To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits.

[R. 3:22-10(b).]

See also State v. Porter, 216 N.J. 343, 354 (2013) (noting that an evidentiary hearing is required to resolve any claim of ineffective assistance of counsel if defendant presents a prima facie case); State v. Preciose, 129 N.J. 451, 462 (1992) (stating that an evidentiary hearing is required when the trial record is not sufficient to resolve claims of ineffective assistance of counsel).

Here, the existing record was sufficient to resolve defendant's claims, and defendant failed to present a prima facie case of ineffective assistance of counsel. Therefore, the PCR judge correctly determined that an evidentiary hearing was not required on defendant's petition.

Affirmed.

1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).